Despite the Supreme Court striking down the Section 66A of the Information Technology Act, the Gover-nment retained its right to block websites carrying material offensive to public order.
This power available to the Centre under Section 69A of the Information Technology Act was upheld by the apex court despite petitions challenging it on the ground of being Constitutionally invalid. The Bench of Justices J Chelameswar and Rohington F Nariman distinguished the challenges to the Sections 69A and Section 66A.
“Section 69A, unlike Section 66A, is a narrowly drawn provision with several safeguards,” they said.
The Bench observed that under Section 69A a website can only be blocked when the Centre is satisfied that it is necessary to do so to safeguard public order, morality, decency and other such restrictions set out in Article 19(2).
The court also made it clear that any order issued to block a particular website containing offensive material was open to challenge in the HC.
The Rules under this Section were also challenged as being arbitrary and defeating free speech. The Bench repelled this argument on the ground that a Committee will first hear the affected party on whether or not it is necessary to block the said information. Only after these procedural safeguards are met, a blocking order came to be passed either by the designated authority or a Court order.
The Bench even upheld another provision in the IT Act — Section 79 — that related to exemption from prosecution for intermediaries such as Google or Facebook, which carry offensive information. It interpreted Section 79 to mean that the exemption will apply only when the intermediary website has “actual knowledge” to remove the offensive material or disable access to certain material by way of a court order and still fail to remove it. The rider was added as the court realised that not doing so would make it very difficult for intermediaries such as Google, Facebook to judge what to remove and what not to remove as they will be flooded with several such requests.